Legal Era Magazine June-July 2022

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IT LEGAL TEAM OF THE YEAR

INFOSYS LTD

Team Infosys receives the award

The team is headed by Group General Counsel, Ms. Inderpreet Sawhney, a seasoned international professional with over 25
years of experience. The Deputy General Counsel is Ms. Jyoti Pawar, who is also the global head for transactions, contracts,
litigation & insurance for Infosys Limited. She is a qualified Solicitor in England and Wales and comes with over 25 years of
experience. Mr. Yogesh Goel, who heads the Office of Integrity and Compliance, brings with him experience of more than 20
years of work experience. The Legal Team comprises of 100+ lawyers across various geographies and is involved in all aspects
of global operations across the Infosys Group. The team partners with the business and provides all legal support to further
the company’s business interests. At the same time, the team is also the conscience keeper of the organization and strives to
uphold the company’s values of integrity and transparency.

IT LEGAL TEAM OF THE YEAR

COGNIZANT

Team Cognizant receives the award

The India and APAC legal team, headquartered in Chennai, was first set up in 2007. From a nascent one-member team, the team has
grown to more than seventy lawyers in the last 15 years. Under the dynamic leadership of Narayanan T, the team has expanded its
scope from merely being a contract review legal support team to a “Business Partner” making a difference in operational efficiency
and growth. Subhadip Sarkar, Vice President, leads Legal Operations and Governance, IP and Technology Management, Global
Procurement and India Government Affairs. The team comprises attorneys with experience in global corporate laws; handling multiple
practice areas cutting across verticals and horizontals, namely, Global Licensing, Data Privacy, Global Alliances and Partnerships,
Litigation and HR, Global Procurement and Vendor Services, Compliance, US/EU Support, Contract Life Cycle Management, Corporate
Governance and India Secretarial and Emerging Business Practices. The team works in tandem with business units to fructify the
company’s business needs, maximize profits and meet client requirements effectively in a highly competitive environment. With the
base in Chennai, the team has a pan-Indian presence with attorneys based in Bengaluru, Gurugram, Hyderabad and Kolkata.

www.legaleraonline.com JUNE-JULY 2022 101

FMCG LEGAL TEAM OF THE YEAR

MARICO LTD.

Team Marico receives the award

The Marico Ltd. legal team consists of 13 members. Amit Bhasin, the GC brings to the table more than 18 years of experience
across corporate laws, corporate governance, legal partnering and laws related to consumer goods. Marico’s legal team lives
by Marico’s motto of Making a Difference and has constantly pushed its boundaries to “Go Beyond, Grow Beyond and Be
the Impact”. In 2021, despite being in the midst of the mammoth second wave of COVID-19, the legal team collaborated
successfully with the business teams to identify the appropriate categories and launch a diverse variety of products in well-
established categories that were fiercely competitive. They engaged with the business team right from the development of
the products and through constant discourse with all involved stakeholders, on internal discussion forums, such as Claims &
Regulatory Forum, Art-Work Management Forum and Compliance Forum.

PHARMACEUTICAL LEGAL TEAM OF THE YEAR

BIOCON BIOLOGICS LIMITED

Team Biocon receives the award

Biocon Biologics Limited is driven by a vision to enhance global healthcare through innovative and affordable biopharmaceuticals and
has enabled access to advanced therapies for diseases that are chronic, where medical needs are largely unmet and treatment costs
are high. The legal team helps the overall team in early anticipation of the increasing dominance of biologics in global development
pipelines, building significant brand equity worldwide for small molecule APIs across statins, immunosuppresants and other specialty
products, building one of the largest and most diverse biosimilar pipelines, spanning insulins, monoclonal antibodies and other
recombinant proteins that address critical chronic diseases such as diabetes, cancer and autoimmune disorders. The company is
ranked among the Top 3 biosimilar players globally for rh-insulin and insulin glargine in volume terms and is the first Indian company
to launch a biosimilar in Japan with Insulin Glargine, which also has been approved for sale in EU and Australia.

102 JUNE-JULY 2022 www.legaleraonline.com

Exclusive

E-COMMERCE LEGAL TEAM OF THE YEAR

TATA 1MG

Team TATA 1MG receives the award

Tata 1mg is India’s leading consumer health platform and aspires to be the trusted health partner for all Indians and its mission
is to make healthcare accessible, understandable and affordable for a billion Indians. It enables consumers to learn more about
their medicines and also find more cost-effective substitutes. 1mg’s doctor platform aims to revolutionize how a consumer
finds the right healthcare professional for his needs. Its diagnostics service brings transparency and price-effectiveness to lab
tests. 1mg is an initiative taken in the spirit of public service with a vision to empower Indian consumers and caregivers to select
the most appropriate healthcare service at the best possible price. The legal team of TATA 1mg works in tandem with other
teams to fulfill the overall objectives of the company.

MEDIA & ENTERTAINMENT LEGAL & REGULATORY
TEAM OF THE YEAR

THE WALT DISNEY COMPANY

Team The Walt Disney Company receives the award

The Walt Disney Company, together with its subsidiaries and affiliates, is a leading diversified international family entertainment
and media enterprise that includes Disney Parks, Experiences and Products; Disney Media & Entertainment Distribution; and
four content groups – Studios, General Entertainment, Sports and International – focused on developing and producing
content for DTC, theatrical and linear platforms. The mission of The Walt Disney Company is to entertain, inform and inspire
people around the globe through the power of unparalleled storytelling, reflecting the iconic brands, creative minds and
innovative technologies that make ours the world’s premier entertainment company.

www.legaleraonline.com JUNE-JULY 2022 103

LEGAL TEAM OF THE YEAR (ALCO BEVERAGES)

PERNOD RICARD INDIA PRIVATE LIMITED

Team Pernod Ricard receives the award
The Pernod Ricard Legal Team consists of 11 members. Headed by Ms. Bijoy Roy, General Counsel, the team is well-structured
but relatively small which is very intuitively aligned with business and has assigned go-to counsels (GTCs) for each business
function for a seamless day-to-day business of the company. Alcohol being a state subject, the legal team effectively handles
multiple state laws, regulations, policies in addition to the central legislations in order to facilitate business in a nuanced legal
framework. The legal team is pro-actively engaged in brainstorming with business functions to drive the message of consumer
centricity. It plays an important role in protecting consumers with a robust enforcement strategy around brand protection which
involves appropriate action against infringements and counterfeits. The legal team ensures that the brands remain protected
and constantly drive incremental value for end-consumers. Legal team actively participates at an industry level to shape the
regulatory framework for the alco-bev industry.

PSU LEGAL TEAM OF THE YEAR

INDIAN OIL CORPORATION LIMITED

Team Indian Oil Corporation receives the award

Indian Oil Corporation Limited is a Maharatna PSU under the aegis of the Ministry of Petroleum & Natural Gas. The Company
is engaged in refining, distribution and marketing of petroleum products and other allied products and has different divisions
i.e. Refineries, Pipelines, Marketing, Business Development and Research & Development. All the Divisions have legal teams.
In addition, the Legal work relating to joint ventures, mergers, trademark laws is taken care of by the Legal team at the
Corporate Office. The Legal setup of the Marketing Division of the Corporation is spread through the Country having its
Head Office in Mumbai and through various State Offices. The teams comprise of qualified lawyers. Different departments
of the Organization work closely in coordination with the legal teams, who provide in-house advice for day-to-day business
transactions and activities, wherever required.

104 JUNE-JULY 2022 www.legaleraonline.com

Exclusive

REAL ESTATE & CONSTRUCTION LEGAL TEAM OF THE YEAR

L&T REALTY LIMITED

Rajeevan Nair (Centre) Head of Legal Department, L&T Realty receives the award from Pallavi Shroff,
Managing Partner, Shardul Amarchand Mangaldas & Co with Anand Desai, Managing Partner, DSK Legal

Established in 2011, L&T Realty is the real estate arm of Larsen and Toubro and a trendsetter amidst real estate developers
in India. With an extensive portfolio spanning 6.50 mn. square meters (i.e. 70 mn sqft) across Residential, Commercial and
Retail developments, the company is currently present in Mumbai, Navi Mumbai, NCR, Bengaluru, Hyderabad and Chennai.
L&T Realty is committed to creating landmarks of excellence and providing customer delight at every touchpoint, through
design, innovation and operational excellence. The business has built a reputation of standing by its promises and embracing
the power of digitization and new technologies into its core strategy for growth.

LEGAL TEAM OF THE YEAR (SMALL SIZE)

UNACADEMY GROUP

Unacademy Group is India’s largest learning platform Siddharth Manchanda, General Counsel, Unacademy
with a growing network of 60,000+ registered Educators receives the award from Anand Desai, Managing
and over 75 million Learners. Unacademy Group has a Partner, DSK Legal
centralized and dedicated team of fifteen (15) in-house
legal professionals who are the gatekeepers of ‘anything
legal’ within the Unacademy Group. The legal team is the
primary ‘risk mitigation’ function within the Unacademy
Group and advises on a plethora of matters including
regulatory matters, strategic business matters, contracts,
litigation (including pre-litigation advisory), real estate,
corporate secretarial, mergers acquisitions, fund raising,
intellectual property and day-to-day legal needs. The
legal team at Unacademy Group prides itself in working
through the challenges of a dynamic regulatory and
business environment and ensuring that it continues to
play an active role of being the ‘business enabler’.

The Legal Team is headed by the General Counsel. The
Legal Team is compartmentalized into the following five
verticals:
• M&A and Fundraising Legal, Operations, Corporate

Legal and Compliance, Business Categories, Legal
and Litigation, IP and Real Estate.

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LE | IN FOCUS

TQhe uincecare

Duty of Care
SSttoorryy CCoonnttiinnuueess

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IN FOCUS | LE

Given the sophistication and resources of banks and
customers’ high expectations of their banks, as well as the
fact that frauds are a constant evil in which banks are used
by fraudsters, banks need to be even more mindful of what

would put them on inquiry of something awry

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LE | IN-HOUSE Introduction

GAUTAM BHATTACHARYYA In our article in the March 2022 edition of this magazine, we reviewed
Partner a number of decisions in the English courts illustrating the renewed
interest in the applicability of the Quincecare duty of care in claims
PHILIPPA BEASLEY against banks. The Quincecare duty was first articulated by Steyn J
Formerly an Associate (as he then was) in Barclays Bank v Quincecare Limited [1992] 4
108 JUNE-JULY 2022 All ER 363. The uptick in cases considering these legal principles,
after a considerable fallow period, has arisen as a consequence of the
noticeable rise in claims against banks due to an increase in frauds
of different types orchestrated by fraudsters where banks are used as
vehicles to perpetuate those frauds.
As we explained in our previous article, whilst there have been a
number of significant decisions in the last three years which have
helped to develop the law, there was still room for development in
the law in this area. On 14 March 2022, the Court of Appeal handed
down its judgment in Philipp v Barclays Bank UK Plc [2022] EWCA
Civ 318. We had covered the High Court’s decision in that case in
our previous article, but this article enables us to provide an update
on the upshot of the Court of Appeal’s decision which overturned
the High Court’s decision and laid down some important principles
in so doing. We will not repeat here the analysis of the other cases
dealing with the Quincecare duty which we previously covered and
would direct readers to our earlier article in the March edition of
this journal for that analysis.

Background facts in the Philipp case

In 2018, Mrs Philipp and her husband, Dr Philipp, were the victims
of “Authorized Push Payment” (APP) fraud and were persuaded by
a fraudster to make payments from Mrs Philipp’s account to various
accounts in the UAE totalling GBP 700,000. APP fraud occurs
when the customer of a bank has been deceived by a fraudster to
instruct their bank to transfer money from their account into an
account controlled by the fraudster. The money transferred, in this
case, represented the majority of the retired couple’s life savings.
The fraudster convinced Mrs Philipp that making these payments
would assist an investigation by U.K. regulatory bodies. By the time
the fraud was discovered, the money had all gone.
Mrs Philipp argued that the bank owed her a duty of care at common
law or implied into the contract between her and the bank, or by
statute under s13 of the Supply of Goods and Services Act 1982. Mrs
Philipp argued that, in order for the bank to discharge its duty to
comply with her instructions with reasonable care and skill, the bank
ought to have had policies and procedures in place for the purposes
of detecting the fraud.

The High Court decision in Philipp v Barclays
Bank UK Plc [2021] EWHC 10 (Comm)

Barclays applied for summary judgment on the basis that it owed no
duty of care as a matter of law. The bank also argued that the claim

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should be struck out because of Given the IN-HOUSE | LE
a break of causation; however, sophistication
this head of its claim was not and resources proper instructions at all, and therefore to
successful. of banks and recognize a duty in this case would impose
customers’ high onerous and unworkable obligations on
The High Court, although expectations of banks.
sympathetic to Mrs and Dr their banks, as Which?, a well-known UK Consumers’
Philipp, granted the bank’s well as the fact Association, applied for permission to
application for summary that frauds are intervene in the appeal. In its capacity as
judgment holding that it would a constant evil intervener, Which? argued primarily that the
not be fair, just or reasonable in which banks Quincecare duty was unremarkable and it
to impose liability on the bank would be illogical to confine it to companies
as a result of the APP fraud. are used by or agents. Furthermore, Which? argued that
In reaching this conclusion, the fraudsters, banks the bank was wrong to suggest the duty
judge found that requiring the need to be even would be unworkable when ordinary banking
bank to take the preventative more mindful… practice in 2018 was more advanced than
measures suggested by Mrs the judge had appreciated.
Philipp would result in too The Court of Appeal overturned the High
much doubt being cast over the Court’s decision, concluding that the
effectiveness of a customer’s Quincecare duty was not dependent upon
instructions and would also the bank being instructed by an agent of the
make the Quincecare duty bank’s customer. It noted that whilst all the
unduly onerous for banks. major cases in which the Quincecare duty
had been considered to date had involved
The Court of Appeal instructions from a fraudulent agent acting
decision in Philipp v for a company, it was “at least possible in
Barclays Bank UK Plc principle that a relevant duty of care could
[2022] EWCA Civ 318 arise in the case of a customer instructing
their bank to make a payment when that
Mrs Philipp appealed the customer is the victim of APP fraud”.
decision to the Court of Appeal. The Court of Appeal ruled that the
She submitted that it was at least Quincecare duty could apply to a victim of
properly arguable that a duty of APP fraud provided that, based on the facts,
care did arise in this case and the bank was put on inquiry that executing
that the matter ought to have the order would result in the customer’s
gone to trial. Her argument was funds being misappropriated. What this
that the existence of the duty amounts to is the existence of “reasonable
ought to be seen as the proper grounds for believing that the order was an
application of the principles attempt to misappropriate funds”, as stated
supporting the existence of the by Lady Hale in paragraph 1 of her judgment
Quincecare duty or else it should in the Supreme Court’s decision in Singularis
be recognized as a legitimate [2019] UKSC 50.
incremental development of Whilst the bank submitted that the duty
that line of authority. of care contended for would represent an
onerous and unworkable burden on banks,
The bank argued that no duty the Court of Appeal found that the duty
existed in these circumstances was conditioned by the banking practice
as a matter of law, as the at the relevant time and the policies and
Quincecare duty only arose procedures which banks in fact would have
when an agent, usually an had. The Court of Appeal also concluded that
agent of a company, was giving the evidence before the High Court made
instructions. If the agent’s it arguable that the duty of care would be
instructions were tarnished neither unworkable nor onerous in terms of
by fraud then the bank had no
JUNE-JULY 2022 109
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LE | IN-HOUSE similar situations. Banks will
as a matter of prudence need
banking practice in March 2018. Moreover, it found that allowing to ensure that they review,
the appeal would not involve an unwarranted extension of the and as necessary strengthen,
Quincecare duty or identifying a novel duty of care. The right way their internal processes
to approach the Quincecare duty was therefore not to limit it only and procedures. Given the
to instructions being given by agents. The Court of Appeal’s decision sophistication and resources
and reasoning are important given the modern day relevance of the of banks and customers’ high
sorts of situations in which the Quincecare duty might be engaged. expectations of their banks, as
As always, the facts of each case are key. well as the fact that frauds are
a constant evil in which banks
Conclusions are used by fraudsters, banks
need to be even more mindful of
As frauds, and in particular APP frauds, continue to rise, the Court what would put them on inquiry
of Appeal’s judgment could have significant consequences for banks of something awry. There
and the victims of fraud in their claims against banks. As this is the remains, as before, further
first case in which it has been found that it is not relevant whether scope for the law to develop in
the bank was instructed by an agent of the customer or the customer this area.
themselves in assessing whether the Quincecare duty applies, it
may encourage victims of fraud to bring claims against banks in

ATBHOUET Author: Gautam Bhattacharyya
Designation: Partner
AUTHOR
Gautam specializes in international commercial arbitration and litigation in a broad number of areas. He is a member
of Reed Smith’s global board, its Executive Committee, has been a partner in the firm since 2000 and is the former

managing partner of Reed Smith’s Singapore office. He also chairs Reed Smith’s India Business Team.

LE

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.

110 JUNE-JULY 2022 www.legaleraonline.com

30TH SEPTEMBER 2022

Acting Within The

CODE OF FOCUS

Is The Minimum Required For

A LAWYER

- Dr. N. R. Madhava Menon

Organized & Conceived by

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LE | IN FOCUS

STAMPING OUT ILLEGAL STREAMING
TECHNOLOGY – RECENT

AMENDMENTS TO THE

COPYRIGHT ACT

THE MINISTRY OF DOMESTIC TRADE AND
CONSUMER AFFAIRS HAS BEEN TAKING
PROACTIVE STEPS TO COMBAT ONLINE
COPYRIGHT INFRINGEMENT

112 JUNE-JULY 2022 www.legaleraonline.com

IN FOCUS | LE

www.legaleraonline.com JUNE-JULY 2022 113

LE | IN-HOUSE n today’s technological era, digital media content is being
uploaded effortlessly through various online platforms. Copyright
INDRAN SHANMUGANATHAN infringement not only exists in the form of importing, selling,
Partner
Iletting or distributing infringing copyrighted work, but it has
SIM SOOK ENG reached a step further. The sale, distribution and/or supply
Principal Associate of illegal streaming devices, which enable unauthorized access to
114 JUNE-JULY 2022 copyrighted contents, has become a common trend.

A recent survey revealed that almost a quarter (23 percent) of Malaysian
consumers are using streaming technology to access pirated television
and video content. Many of them admitted canceling their subscriptions
to content streaming services and purchasing illegal streaming devices.

The fact remains that despite the illegal activity has been in existence
for years, the Malaysia Copyright Act 1987 had not been updated,
until very recently, to specifically combat such offenses. It, undoubtedly,
resulted in significant losses to the content creators, copyright owners,
and the entertainment and media industry.

With a substantial increase in the sale and distribution of illegal
streaming devices in Malaysia, the Ministry of Domestic Trade and
Consumer Affairs (MDTCA) has been taking proactive steps to combat
online copyright infringement.

Furthermore, it witnessed judicial recognition of the issue when the
High Court in the Measat Broadcast Network Systems Sdn Bhd
vs Koo Kok Wee (Suit No. WA-22IP-61-10/2020) case declared that
the sale, distribution, dissemination and supply of television boxes or
illicit streaming devices (configured to provide unauthorized access to
copyrighted content), constituted a violation of the Copyright Act.

However, it was not clear how the finding was reached as the act of sale
and distribution of streaming devices were not strictly acts controlled by
the copyright.

Despite the steps taken by MDTCA and attempts by the courts to deal
with these activities, the provisions of the 1987 Act appeared inadequate
to specifically address the problems caused by illegal streaming
technology. The existing provisions needed to be stretched to capture
this form of infringement even though it was not the intent and spirit of
the provisions.

This situation demanded changes, and this was addressed in the
Copyright (Amendment) Act 2022. The new Section 43AA brought
into existence new offenses. It spelt out the possible penalties imposed
on convicted offenders, thereby, demonstrating a commitment on the
part of the government to taking serious steps to stamp out illegal
streaming technology.

Section 43AA provides that it would be an offense if a person commits
or facilitates:
(a) manufacturing a streaming technology for sale or hire,
(b) importing a streaming technology,
(c) selling or letting for hire, offering, exposing or advertising for

sale or hire, possessing or distributing a streaming technology

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during a business, A recent survey IN-HOUSE | LE
(d) distributing a streaming revealed that
almost a quarter manager or a person in a similar capacity),
technology for purposes (23 percent) he would be deemed guilty of the offense. He
other than during a of Malaysian would be charged severally or jointly with the
business to such an extent consumers are corporate body or the firm.
as to affect prejudicially using streaming
the owner of the copyright, technology to The person charged with the offense would
(e) offering to the public or access pirated also include someone who purported to the act
providing any service of television and in any such capacity or was responsible for the
streaming technology. video content. management of the affairs of the corporate
Many of them body or the firm or was assisting in such a
To dispel misconceptions, management.
the Amendment Act defined admitted
‘streaming technology’ to include canceling their The only exception would be in case the person
a computer program, device subscriptions to concerned can show that the offense was
or component, used in part or content streaming committed without his consent or connivance
in a whole that results in an and that he exercised all due diligence to
infringement of the copyright in services and prevent the commission of the offense.
a work. purchasing
illegal streaming The traders would now be reminded not
A person found to have to indulge in the acts of manufacturing,
committed or facilitated any of devices. importing, distributing, offering for sale or
the acts mentioned above would sale of streaming technology. They would
be liable to a fine of no less than be apprised of the consequences of enabling
RM10,000 and no more than and allowing unauthorized access to the
RM200,000 or imprisonment for copyrighted contents as they may be liable to a
a term not exceeding 20 years, or fine or imprisonment or both, upon conviction.
both.
The specific provisions now empower the
If an offense is committed by MDTCA to be the stronghold and protect the
a corporate body or a person rights of the content creators, copyright owners
who is a partner in a firm (the and the entertainment and media industry. The
director, chief executive officer, MDTCA has been proactive with enforcement
chief operating officer, secretary, activities already ongoing after amendments
to the Act.

ATBHOUET Author: Indran Shanmuganathan
Designation: Partner
AUTHOR
Indran is a Partner in the Intellectual Property & Technology Department at Messrs. Shearn Delamore & Co. His
practice spans over two decades, largely involving various spectrums of seasoned IP litigation such as Patent,
Trademark, Copyright, Domain Name disputes and Industrial Design cases where some of his litigated cases have
provided reference or precedent value. He has also advised major industry players on IP strategies and litigated on
IP issues with clients from diverse industries. Indran regularly appears as lead counsel in complex and novel cases or

appeals which encompass cutting-edge IP issues in Malaysia’s apex court.

Author: Sim Sook Eng
Designation: Principal Associate

Sook Eng is a Principal Associate in the Intellectual Property & Technology Department at Shearn Delamore & Co.
Her practice covers both contentious and non-contentious IP matters including IP advisory, prosecution work,
enforcement and IP litigation. Sook Eng’s practice also covers compliance and related work in the areas of data

privacy, competition and antitrust.

LE

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.

www.legaleraonline.com JUNE-JULY 2022 115

LE | VIEWPOINT

116 JUNE-JULY 2022 www.legaleraonline.com

VIEWPOINT | LE

Joining The SPAC Bandwagon
Has The

Moment Passed?
The lack of such disclosure requirements may be what
makes the SPAC route for going public attractive to target
companies, however, they may not be the best for investors

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LE | VIEWPOINT “SPACs” or special purpose acquisition companies are companies which
are created for the specific purpose of acquiring a target private company.
MINI RAMAN A SPAC is formed with the specific intent of investing in a specified sector
Partner or a specified economy. The SPAC is formed by an individual or group of
individuals and goes through an Initial Public Offer (“IPO”) process.
118 JUNE-JULY 2022 Once the SPAC has been raised through funds from investors and has gone
through an IPO, it acquires a target private company in its specified sector
or economy.The target company can then trade on a stock exchange under
the SPAC’s ticker.Thus, the target company has the option to go public via
the SPAC as opposed to going public vide an IPO. The rigorous rules of
an IPO are more cumbersome and more expensive than those of a SPAC.
The SPAC route is also more desirable for investors as it mitigates many
of the risks associated with an IPO listing.
In the event, the SPAC does not acquire the target company within the
stipulated period, the SPAC is liquidated, and its funds are returned to
investors.
In India, the Companies Act, 2013 (“Companies Act”) does not currently
contain explicit provisions for listing on overseas stock exchanges through
SPAC vehicles.The Company Law Committee (“CLC”),in its report dated
March 2022, observed that the SPAC route may be particularly profitable
for Indian companies in cases where overseas investors possess a keener
awareness of a company’s potential than their domestic counterparts.
The CLC particularly examined the listing of the Indian company Renew
Power Private Limited.
Additionally, the CLC looked into the potential for Indian incorporated
SPACs’ listing on overseas stock exchanges. It was brought to the
CLC’s attention that SPACs are currently regulated and recognized
across multiple jurisdictions such as the UK, USA, Canada, Singapore,
and Malaysia. Therefore, the CLC felt that enabling the listing of India
incorporated SPACs on global exchanges would open up avenues for
Indian companies to operate and carry out business in such jurisdictions.1
SPAC IPOs in the US accounted for more than half of the USD 67 billion
in IPO capital raised in the US in 2020 according to Goldman Sachs.
However, globally, SPAC listings have plunged due to increased regulatory
scrutiny arising from concerns of weak investor protection mechanisms
and vague disclosures2. New underwriter liability guidelines have been
issued by the Securities and Exchange Commission of the USA (“SEC”)
and this has spooked most underwriters including Goldman Sachs who is
said to have been ending its involvement in SPAC vehicles.3
It is in this global scenario that the CLC examined whether Indian
companies should (a) list overseas through SPACs and (b) whether
SPACs incorporated in India can list on domestic and global exchanges.

1 CLC Report March 2022 Page 62 Paragraph 22.6
2 https://www.cfodive.com/news/spac-ipos-plunged-87-during-q2-amid-tougher-sec-

scrutiny/606026/
3 https://www.bloomberg.com/news/articles/2022-05-09/goldman-is-pulling-out-of-most-

spacs-over-threat-of-liability?cmpid=BBD050922_MKT&utm_medium=email&utm_
source=newsletter&utm_term=220509&utm_campaign=marketsasia

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VIEWPOINT | LE

“The rigorous process of an IPO and the As regulators overseas find
disclosure requirements under the applicable loopholes in the SPAC structure
listing regulations are for the purposes of and increase their regulatory
ensuring that the investors in a company scrutiny and regulators in India
going public are fully informed of the risks are yet to pass legislation
associated therewith. The lack of such disclosure enabling SPAC investments, it
requirements may be what makes the SPAC route would appear that the moment in
for going public attractive to target companies, the sun for SPACs has passed.
however, they may not be the best for investors Additionally, and very importantly,
as a regulatory review of SPACs
It is important to note in this context that the Securities and Exchange increases in the USA, it is
Board of India (“SEBI”) has been vested separately with the task of clear that they may not be the
determining the regulations applicable to the listing of SPACs on domestic most perfect structure from an
stock exchanges. investor protection mechanism
The CLC has recommended introducing an enabling provision to recognize perspective. Do Indian regulators
SPACs under the Companies Act and allow entrepreneurs to list SPACs want Indian investors to be
incorporated in India on domestic and global exchanges. The CLC also exposed to the risks associated
recommended relaxing the requirement to carry out businesses before with investing in SPAC vehicles?
being struck off and providing exit options to the dissenting shareholders of The answer, in my view, should be
a SPAC (if they disagree with the choice of the target company identified) negative.
which the options must be laid down in the Companies Act.4 The rigorous process of an IPO
It is further important to note that the creation and listing of SPAC and the disclosure requirements
vehicles in India involves the overplay of a multitude of laws including the under the applicable listing
Companies Act, the Foreign Exchange Management Act, 1999 (“FEMA”) regulations are for the purposes
and the regulations made thereunder and SEBI regulations. It may not be of ensuring that the investors in
a simple tax to introduce new laws, rules, or regulations to provide for a company going public are fully
SPACs as it will involve numerous regulators and the laws will have to be informed of the risks associated
in consonance with one another. therewith. The lack of such
disclosure requirements maybe
4 CLC Report March 2022 Page 63 Paragraph 22.8 what makes the SPAC route for
going public attractive to target
companies however they may not
be the best for investors.

ATBHOUET Author: Mini Raman
Designation: Partner
AUTHOR
Mini Raman is a corporate and transaction lawyer with 22 years of experience in M&A, private
equity, and venture capital transactions and in general corporate and commercial law. She has
represented both investors and the promoters in different instances. She has also represented clients
in different industrial sectors such as e-commerce, IT, facilities services, telecom, hospitals, retail
etc. She regularly provides expert advise on setting up of businesses and investing into India. She has
advised on various funds and companies regularly on complex issues in Indian corporate, commercial
and transaction law. Mini holds a bachelor of law degree (LLB) from the University of Pune and a
master’s degree in law (LLM) from the University of London. She is a member of the Bar Council

of Maharashtra & Goa. Mini is partner with LexOrbis.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

www.legaleraonline.com JUNE-JULY 2022 119

LE | VIEWPOINT

ACanRABnITRAL AWARD

Be Stayed Upon Surety
And Personal Undertaking

The law laid down by the Hon’ble Court will also deprecate
the practice of Courts to accept personal surety or
undertaking, which are completely alien to civil laws

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VIEWPOINT | LE

www.legaleraonline.com JUNE-JULY 2022 121

LE | VIEWPOINT S ince, the overhauling of the Arbitration and
ConciliationAct, 1996 by way of amendments carried
AJAY MONGA out by Parliament in 2015, stay against arbitral
Partner award became a debatable issue. It has in fact been
tested many times before many High Courts as well
DEVMANI BANSAL as by the Hon’ble Supreme Court. Still, the analogy behind
Principal Associate granting the stay has not been followed by the Courts below.
Recently, in one such case, a District Court at Betul, Madhya
122 JUNE-JULY 2022 Pradesh, has granted the stay against the arbitral award upon
the respondent furnishing the personal surety and undertaking,
which not only diminishes the very object of amendments but
also frustrated the scope of recovery of the arbitral award. The
said matter was challenged by the Award Holder before the
Hon’ble High Court of Madhya Pradesh at Jabalpur in Angel
Broking Limited vs. Vijay Khandelwal1.
While passing the above judgment, the Hon’ble Court also
discussed the law laid down by the Hon’ble Supreme Court in
the matter of Atma Ram Properties (P) Ltd. Vs. M/s Federal
Motors (P) Limited2, wherein the Supreme Court held that
“a decree for payment of money is not ordinarily stayed by the
appellate Court, yet, if it exercises its jurisdiction to grant a
stay in an exceptional case, it may direct the appellant to make
payment of the decretal amount with interest as a condition
precedent to the grant of stay.”
The Hon’ble High Court also discussed the judgment of the
Hon’ble Supreme Court in Pam Development Private Limited
vs. The State of West Bengal3, wherein, the Hon’ble Supreme
court held that “Section 36 of the Arbitration Act also does
not provide for any special treatment to the government while
dealing with the grant of stay in an application under the
proceedings of Section 34 of the Act”.
The Hon’ble High Court, after discussing various judgments held
that “As per Section 36 of the Arbitration and Conciliation
Act, 1996 and considering Order 41 Rule 5 of the Code of
Civil Procedure, conditional stay can be granted subject
to furnishing of security to the satisfaction of decree. The
District Judge has passed an order to furnish surety and
not security therefore he has acted contrary to provision
of Section 36 (3) of the Arbitration and Conciliation Act,
1996.”
The above judgment has added another milestone in encouraging
the parties to seek an alternative resolution process for

1 https://mphc.gov.in/upload/jabalpur/MPHCJB/2021/MP/4315/MP_4315_2021_
FinalOrder_31-Jan-2022_digi.pdf

2 2005 (1) SCC 705
3 2019 (8) SCC 112

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VIEWPOINT | LE

Thus, this judgment laws. Thus, this judgment is a
is a welcome step welcome step in recognizing and
in recognizing and reposing faith in the Arbitral
reposing faith in process mechanism.
the Arbitral process

mechanism.

resolving their inter-se disputes, inasmuch as it ensures the effective
satisfaction of arbitral award. Further, the law laid down by the
Hon’ble Court would also deprecate the practice of Courts to accept
personal surety or undertaking, which are completely alien to civil

ATBHOUET Author: Ajay Monga
Designation: Partner
AUTHOR
Ajay is a Partner (Litigation) in SNG & Partners and leads the Arbitration practice within the
firm. Having experience of over 20 years, Well-experienced in handling litigation pertaining
to commercial contracts relating to Banking, International Contracts, Letters of Credits,
Bank Guarantees, Stand-by Letters of Credit. Ajay was part of a team of lawyers involved in
International Arbitrations conducted under the Rules of The International Chamber of Commerce

and the Singapore International Arbitration Centre.

Author: Devmani Bansal
Designation: Principal Associate

Devmani is a Principal Associate (Litigation) in SNG & Partners. Having experience of nearly
a decade, Devmani has been repressing clients in relation to Letters of Credits, Bank Guarantees,

Stand-by Letters of Credit issues, Consumer Protection Laws and Arbitration Laws.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.

www.legaleraonline.com JUNE-JULY 2022 123

LE | GLOBAL UPDATE

IDENTIFYING AND
MITIGATING

ESG RISKS
FOR FINANCIAL
SERVICES FIRMS

The growth in ESG-related
disclosure and reporting

obligations and classification
of ESG metrics and litigation
means that financial services
firms must not only take steps

to put in place adequate
procedures to meet these
requirements but must also
ensure that their businesses are
doing all they can to achieve
their national net-zero targets
and to support their regulators’
ESG objectives while complying
with domestic legislation

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GLOBAL UPDATE | LE

www.legaleraonline.com JUNE-JULY 2022 125

LE | GLOBAL UPDATE he energy price crunch, exacerbated by the war
in Ukraine, has led governments, institutions and
PHILLIP D’COSTA individuals to urgently revisit the question of where and
Partner
T how we source our energy. These devastating events
HARRIET VIDOT may become a catalyst for an earlier transition from
Senior Associate fossil fuels to renewable sources of energy and a faster path to
126 JUNE-JULY 2022 net-zero, defined as the balance between the amount of greenhouse
gas produced and the amount removed from the atmosphere.
Environmental, Social and Governance (ESG) has become the
fastest growing compliance issue for financial services firms and
this article looks at the key regulatory and legal developments in
this area and the risks that financial services firms may face.

Background

The Paris Agreement, a legally binding international treaty
on climate change, recognizing “the need for an effective and
progressive response to the urgent threat of climate change”, set
out a key objective of “limiting the increase in the global average
temperature to well below 2°C above pre-industrial levels and
pursuing efforts to limit the temperature increase to 1.5°C”. The
Agreement obliges countries to determine emission reductions
targets towards net-zero. Under the Agreement, states and
financial firms were tasked with making “finance flows consistent
with a pathway towards low greenhouse gas emissions and climate-
resilient development”.

The Financial Conduct Authority (FCA)

The FCA has extended its requirement for premium listed
companies to make disclosures in their financial statements in
line with the Task Force on Climate Related Financial Disclosures
(TCFD) recommendations to include standard issuers of shares
and global depositary receipts (GDRs). The new rules will apply
to accounting periods commencing from 1 January 2022 and
will be based on TFCD’s four pillars of strategy, governance, risk
management, and metrics and targets.
With its outcomes for climate-related disclosures, protecting
consumers against greenwashing and promoting companies’
sustainability strategies, the FCA recognizes the “need to
ensure that ESG claims and credentials stand up to scrutiny, that
consumers’ interests are protected, and that competition remains
effective in the interests of consumers.”
The FCA’s ESG sourcebook also contains new mandatory TCFD-
aligned disclosure obligations for the largest asset management
funds (£50bn AUM) and owners (£25bn AUA) with effect from 1
January 2022. These rules will gradually be rolled out to mid-size
and smaller firms with AUM of over £5bn from 1 January 2023.
For the period from 6 April 2022, certain larger companies and
LLPs with over 500 employees, including banking companies,
will need to make environment-related disclosures aligned to
the TCFD recommendations. The changes are contained in the

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Companies (Strategic Report) With its outcomes GLOBAL UPDATE | LE
(Climate-related Financial for climate-related
Disclosure) Regulations 2021 The SDR is likely to come into effect
(Regulations) and will be disclosures, around 2023/2024 and will build on the
implemented in the Companies protecting disclosures recommended by the TCFD.
Act 2006. consumers against Firms will also need to publish transition
greenwashing plans that include interim milestones and
Sustainable Disclosure and promoting targets to demonstrate how the business
Regulation (SDR) and companies’ will reach the target of net-zero by 2050.
green taxonomy sustainability
strategies, the Regulatory and litigation risks
In 2020, the EU’s Taxonomy FCA recognizes
Regulation, a classification the “need to Below are some of the major risks that
system with a list of ensure that financial services firms should be aware
environmentally sustainable ESG claims and of from these new ESG reporting and
economic activities, established credentials stand disclosure obligations, goals and objectives.
six environmental objectives. up to scrutiny,
These are: climate change that consumers’ Regulatory action
mitigation; climate change interests are
adaptation; sustainable use protected, and An investigation by the US Department
and protection of water and that competition of Justice, the SEC and Bafin into the
marine resources; transition to remains effective DWS Group’s alleged overstatement of
a circular economy; pollution in the interests of its ESG capabilities identified what has
prevention and control; and the consumers been described as a “frozen middle”, the
protection and restoration of fund managers who were not engaged in
biodiversity and ecosystems. following ESG recommendations.
The first two objectives came We expect the FCA to aggressively
into effect on 1 January 2022. crackdown on greenwashing and make
Investors and stakeholders may examples of firms that do not comply. As
well expect UK companies to the main focus of the FCA is maintaining
demonstrate adherence to the transparency and trust in the market,
EU’s taxonomy before the UK regulatory action on greenwashing tactics
rules come into force. such as making untrue or unsupported
statements about the ESG credentials of
Looking ahead, Phase 1 of the a business’s activities or products will be
UK Government’s Roadmap high on the agenda.
to Sustainable Investing is
being implemented via the Disclosure of climate strategies
UK’s Sustainable Disclosure
Regulation (SDR) and green We anticipate an increase in claims
taxonomy. The focus is on relating to the management and disclosure
financial services’ firms of climate change-related business risks
providing transparency to and actions taken to respond to such
investors of their products’ risks. Mark McVeigh’s Australian Federal
sustainability credentials, and Court case against REST, a A$57bn retail
the businesses’ own impact on superannuation fund, settled shortly
the environment. Clear metrics before trial with the fund aligning itself
must be used to allow proper with the TFCD’s climate change risks. It
comparison between products stated that: “climate change is a material,
and activities in order to direct and current financial risk to the
build trust in the market, aid superannuation fund across many risk
investment decisions and avoid categories, including investment, market,
greenwashing. reputational, strategic, governance and
third-party risks”. We may see similar
disclosure exercises here.

www.legaleraonline.com JUNE-JULY 2022 127

LE | GLOBAL UPDATE claims against commercial
banks, possibly on grounds of
We expect the FCA to taking unacceptable financial
aggressively crackdown on risks, a failure to meet climate
change goals or mitigate risks,
greenwashing and make or for inadequate due diligence
examples of firms that into corporate customers or
projects.
do not comply
Parent company liability
Greenwashing
There have been several
The Corporate Climate Responsibility Monitor 2022 reported actions brought against the
on the transparency and performance of 25 major companies in parent company in relation to
relation to their professed ESG credentials. A number of the environmental pollution caused
companies were graded as having low or very low integrity. The by a subsidiary during the
state of Minnesota brought a claim against Exxon Mobil, the extractive or refining process.
American Petroleum Institute and Koch Industries Inc alleging For instance, where the parent
fraud and a “campaign of deception”. Firms should expect to see company is found to exercise
the things they say about their ESG credentials being tested and significant control over the
challenged. activities of a subsidiary on so
We are also likely to see claims by investors and other stakeholders called Vedanta grounds. There
who may have purchased products on the basis of a company’s is likely to be an increase in
ESG disclosures and advertising but later found that those green this type of group litigation.
credentials did not stack up. It will be vital that the public
disclosures made generally and directly to investors and consumers Employment claims
are accurate and can withstand scrutiny.
With hybrid working and an
Claims against directors emphasis on a better work-
life balance, employment
Where ESG claims are found to be inaccurate, unsupportable or claims may arise from working
there is no proper plan in place to achieve ESG targets or manage practices that are seen as
ESG risk, directors may face claims from stakeholders for failing harmful to health. These could
in their statutory and fiduciary duties. Client Earth and activist be due to employees working
shareholders are pursuing a claim against the directors of Shell longer hours or for a failure
in their personal capacities to include an alleged breach of their to take adequate measures to
duty to promote the success of the Company under s172 of the protect mental health while
Companies Act. working remotely.

Claims against financial institutions Reputational risk

With claims already being brought against pension funds, asset Damage to reputation is an
management companies and central banks, we may expect to see obvious side effect of ESG-
128 JUNE-JULY 2022 related activism or actions.
HSBC was recently targeted
by environmental activists
who claimed that the bank’s
sustainability adverts were
misleading and it was reported
to the Advertising Standards
Authority. Some lenders have
declined to fund and been
eager to publicly distance
themselves from clients with

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high profile fossil fuel projects. We expect firms to carry out GLOBAL UPDATE | LE
greater due diligence on this type of ESG risk and to support more
ESG-compliant activities and behaviors. adequate procedures to meet
these requirements but must also
Conclusion ensure that their businesses are
doing all they can to achieve their
The growth in ESG-related disclosure and reporting obligations national net-zero targets and to
and classification of ESG metrics and litigation means that support their regulators’ ESG
financial services firms must not only take steps to put in place objectives while complying with
domestic legislation.

ATBHOUET Author: Phillip D’Costa
Designation: Partner
AUTHOR
Phillip is a commercial disputes partner, head of the IT and IP disputes team and co-head of the India group at
Penningtons Manches Cooper. He has over 20 years’ experience of complex, high value commercial litigation and
arbitration, often with a cross-border element, and regularly advises on commercial, technology, financial services

and civil fraud disputes, as well as enforcement and asset recovery.

Phillip has acted on a number of board and shareholder, banking and IT disputes and represents a range of private
sector clients. He assists businesses and individuals with insolvency and regulatory compliance issues, and has
a particular interest in contentious and transactional work involving India, having acted on several English law

disputes involving Indian parties.

Author: Harriet Vidot
Designation: Senior Associate

Harriet is a senior associate in the commercial dispute resolution team in London. She acts for mid to large corporates
as well as individuals based in the UK and overseas, advising on a wide variety of commercial and financial services
disputes, most of which have a multi-jurisdictional / international element. Harriet regularly deals with banking and
financial litigation, contractual disputes, shareholder disputes, freezing injunctions and jurisdictional issues. She

also works closely with the corporate, commercial and family teams.

Recent client feedback includes praise for Harriet’s ‘can do attitude’ and her ‘uniquely brilliant writing style enabling
her to provide first class legal advice’. She has also been described as a ‘superb lawyer’.

LE

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.

www.legaleraonline.com JUNE-JULY 2022 129

LE | GLOBAL UPDATE

MAJOR CHANGES IN THE

DUBAI ARBITRATION SCENE
THE END OF THE DIFC-LCIA AND
CONSOLIDATION AT THE DIAC
DIFC-LCIA has been wound up by legislative
decree and its assets moved to the Dubai
International Arbitration Centre (DIAC)

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GLOBAL UPDATE | LE

Indian traders and investors have long been active in the Gulf region.
Dubai in particular sees Indian businesses thrive alongside those
from the West and East. New dispute resolution centers have
been a feature of growth of the legal environment in many Gulf
states, and in particular Dubai where the DIFC-LCIA arbitration
center (a joint venture between the Dubai International Financial Center
(“DIFC”) and the London Court of International Arbitration (“LCIA”))
has long been a popular choice for international arbitration. That choice
is no longer available as the DIFC-LCIA has been wound up by legislative
decree and its assets moved to the Dubai International Arbitration Centre
(“DIAC”).

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LE | GLOBAL UPDATE Businesses and lawyers contracting in the region, and whose existing
contracts contain DIFC-LCIA arbitration clauses will need to take note of
NICK PEACOCK the changed arbitration landscape in Dubai and the choices now available.
Partner
Background
132 JUNE-JULY 2022
The DIFC-LCIA was first established as an arbitration center in 2008 and
was relaunched in 2015. New DIFC-LCIA Rules were launched in 2016
and its caseload continued to grow.
However, on 14 September 2021, Decree No. (34) Concerning the Dubai
International Arbitration Centre was issued in Dubai announcing the
dissolution of the DIFC-LCIA. The Decree stated that the DIFC-LCIA
and a second arbitration center, the Emirates Maritime Arbitration
Centre (“EMAC”) were to be merged into the DIAC.The relevant parties,
including the DIAC and the DIFC-LCIA were granted 6 months from
entry into force of the Decree to give effect to its terms, which period
expired on 20 March 2022 with no transitional arrangements having been
announced.

Reform at the DIAC

Meanwhile, changes were being made at the DIAC.
New modernized DIAC Rules were published and took effect from March
2022. These rules included revised provisions for expedited proceedings,
consolidation and joinder, the use of virtual hearings and electronic filings,
and also the recovery of legal and expert fees which had been a grey area
under previous DIAC Rules. The new DIAC Rules also provided a default
seat for the arbitration in the DIFC where the parties had not otherwise
chosen a seat or venue for the proceedings, and subject to a decision by
the tribunal to determine a different seat. More analysis of the new DIAC
Rules can be found in our blog post here: https://www.twobirds.com/en/
insights/2022/uae/diac-new-rules-for-a-new-world
DIAC also announced reform of its management structures replacing
its Executive Committee with a new Arbitration Court to effect the
supervision and case management of the arbitration and ADR caseload
of the expanded center. The new Court members comprise: Dr. Ahmed
Bin Hazeem Al Suwaidi (President), Ahmed Mohamed Al Rasheed, Jehad
Abdulrazzaq Kazim, Graham Lovett, H.E. Justice Shamlan Al Sawalehi,
Mohammad Rashid Al Suwaidi, Dr. Mansoor Al Osaimi, Dr. Yousef Al
Suwaidi and Gemma Nemer.

Dissolution and Handover

After much anticipation, the DIAC and DIFC-LCIA issued a joint statement
on 28 March 2022 setting out the regime agreed between them to give
effect to the Decree and address the handling of arbitration cases already
filed, or to be filed, with the DIFC-LCIA given the announcements of its
merger with DIAC.
According to the joint press release, and stated to be consistent with the
Decree, the LCIA was to administer “all existing DIFC-LCIA cases (i.e.

www.legaleraonline.com

GLOBAL UPDATE | LE

“Users and stakeholders
in international arbitration
in the Gulf region are advised
to take careful note of the
changed arbitration landscape
in Dubai and the new choices
available

those commenced and registered by the DIFC-LCIA under a designated amongst others. Or they may
case number on or before 20 March 2022)” which would henceforth be consider other arbitral institutions
administered from the LCIA in London. and seats in the Gulf region such
Meanwhile, all DIFC-LCIA cases commenced on or after 21 March 2022 as the Abu Dhabi Commercial
(or commenced before 21 March 2022 but not registered by the DIFC- Conciliation and Arbitration
LCIA under a designated case number) are agreed to be “registered by Centre (“ADCCAC”).
DIAC and administered directly by its administrative body in accordance More problematic will be those
with the respective rules of procedure of DIAC, including the tables cases filed with the DIFC-LCIA
of fees and costs in force from time to time, through DIAC’s own case but not assigned a case number
management systems, unless otherwise agreed by the parties”. where parties will find themselves
This means parties whose agreements provide for DIFC-LCIA arbitration now before a DIAC arbitration,
and who do not agree to use a new arbitral institution in light of the or those contracts where one
dissolution of the DIFC-LCIA can expect to have their cases referred to party refuses either to amend the
and administered by the DIAC under DIAC Rules. arbitration agreement or accept
the effect of the Decree to convert
A revised set of choices an agreed DIFC-LCIA arbitration
into a DIAC arbitration.
Many parties have understandably revisited their template agreements In any event,users and stakeholders
providing for DIFC-LCIA arbitration in light of the new arbitral landscape in international arbitration in
in Dubai. Where those parties do not wish to use the DIAC, they may the Gulf region are advised to
choose other options with the DIFC as a seat (including international take careful note of the changed
arbitral institutions such as the International Chamber of Commerce arbitration landscape in Dubai and
(“ICC”), LCIA, or Singapore International Arbitration Centre (“SIAC”), the new choices available.

ATBHOUET Author: Nick Peacock
Designation: Partner
AUTHOR
Nick Peacock is a Partner in the International Dispute Resolution practice at Bird & Bird. He is Head
of the London Arbitration practice and Co-Head of the firm’s India Group. Sarah Batarfi is a Paralegal

in the London office of Bird & Bird.
The Bird & Bird International Arbitration team can advise on the options and approaches available from
its offices in London, Dubai, Abu Dhabi, or anywhere else across its 20 country international network.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

www.legaleraonline.com JUNE-JULY 2022 133

LE | TOP STORIES
VIKAS SINGH RE-ELECTED AS PRESIDENT OF THE SUPREME COURT BAR ASSOCIATION

Due to COVID-19 pandemic constraints, the Senior Advocate Pradeep Kumar Rai was elected
elections were held physically this year. Vice President and advocate Rahul Kaushik was
elected the Secretary.
The incumbent President of the Supreme Court Bar
Association (SCBA), Senior Advocate Vikas Singh Rai, along with advocates Sukumar Patt Joshi and
has been re-elected to the post. He defeated his S Sadasiva Reddy was in the race for the post of
nearest rival Senior Advocate Ranjit Kumar. While Vice-President.
Singh bagged 1005 votes, Kumar could secure
only 754.

Singh, Kumar and advocate Neeraj Srivastava
contested for the post of the President.

Meanwhile, during the presidential debate, Kumar
had attempted to clear the air by mentioning,
“Many say I am inaccessible and, therefore, not a
good candidate. To be busy and by practicing in the
Supreme Court we do not become inaccessible. Our
existence in this court is because we practice law.”

On the other hand, Singh had proposed an
amendment to the Advocate-on-Record
Examination rule for the exemption of lawyers
who have been practicing for a decade in the apex
court.

SUPREME COURT DIRECTS SEBI NOT TO MAKE INSIDER-TRADING PRESUMPTIONS

The bench had allowed the appeals of the and Exchange Board of India (SEBI), Prohibition of
Securities Appellate Tribunal that upheld the order Insider Trading Regulations 2015 had to be proved
of penalizing the appellants. The Supreme Court by producing cogent materials. These included
has held that insider trading cannot be presumed letters, emails, and witnesses and not just the
merely on the basis of proximity between the alleged proximity between the entities. It further
parties. said that the onus of proving such communication
was on SEBI.
It held that ‘communication’ of Unpublished Price
Sensitive Information (UPSI) under the Securities A bench comprising Justice Vineet Saran and
Justice Aniruddha Bose allowed the appeals filed
134 JUNE-JULY 2022 by assailing the order of the Securities Appellate
Tribunal (SAT), which had upheld the order of the
Whole Time Member (WTM) of SEBI, penalizing
the appellants for insider trading.

In 2005, P Chand Jeweller Private Limited was
promoted by three brothers PC Gupta, Amar Chand
Garg and Balram Garg. In 2011, Amar Chand Garg
and his family exited the Company and he resigned
from the post of Vice-Chairman. Subsequently, it
was converted into PC Jewellers Limited, a public
limited company.

www.legaleraonline.com

In 2019 and 2020, SEBI issued an impounding order TOP STORIES | LE
and show-cause notice alleging insider trading. PC
Gupta’s son, Sachin Gupta and daughter-in-law, Appearing on behalf of the other appellants,
Shivani Gupta along with Amar Chand Garg’s son, Senior Advocate V Giri contended that the entire
Amit Garg were alleged to have traded on the basis case of insider trading was based on the close
of UPSI between April 2018 and July 2018. relationship between the parties. The charges were
based on circumstantial evidence. He submitted
SEBI claimed that the three appellants had access that the appellants had placed the material on
to the USPI due to their proximity to the promoters. record to establish estrangement between the
By its May 2021 order, the WTM of SEBI imposed parties, even before the UPSI existed.
a penalty of `20 lakhs and restrained them from
accessing the securities market. In October 2021, it On the other hand, appearing for SEBI, Senior
also dismissed the appeal filed before SAT. Advocate, Arvind Datar claimed that the
Managing Director, Balram Garg was privy to
Appearing for Balram Garg, Senior Advocate, Dhruv the communications pertaining to the buy-back
Mehta submitted that the WTM had held that and withdrawal of the equity shares. He had
Sachin Gupta, Shivani Gupta and Amit Garg were communicated the UPSI to the other appellants,
not ‘connected persons’ or ‘immediate relatives’ of who executed the trades wherein they made
Balram Garg. It was asserted that since Balram Garg gains and could avoid losses. He averred that the
was found to have violated the SEBI Regulations, documents on record did not demonstrate that
no presumptions could be raised. all ties between the parties were severed and the
UPSI was in their possession.
The counsel argued that the onus to establish the
communication of the UPSI was on SEBI and it However, the court ruled that even if there was
had failed to discharge that. Moreover, since the no estrangement, SEBI had failed to discharge its
three appellants were not under the control of burden of establishing the possession of UPSI.
Balram Garg, SEBI could not avail the benefit of the Also, there was no correlation between the UPSI
presumption against ‘immediate relatives’. and the sale of shares. The shares were sold based
on purely personal and commercial decisions.

THE BAR COUNCIL OF INDIA FILES AN AFFIDAVIT IN THE SUPREME COURT

The top court is likely to take up the matter on April and colleges conduct their exams separately, as of
19. now.

An affidavit has been filed by the Bar Council of India Advocate Durga Dutt on behalf of BCI filed the
(BCI) in the Supreme Court on a range of proposed affidavit before a bench led by Justice Sanjay Kishan
reforms in the country’s legal education system. If it Kaul.
meets the approval, senior lawyers may soon have
to give space to at least five young lawyers in their JUNE-JULY 2022 135
chambers.

Based on the scores obtained by the young lawyers
in an online legal aptitude test, they could be placed
under lawyers designated as senior advocates or
those with 25 years of standing at the Bar.

The BCI was responding to the questions when the
bench implored the regulatory body to bring in a slew
of reforms. These pertained to the standards being
followed by the law colleges and the placement of
young law graduates. Another significant change
expected was of introducing a state-level entrance
test for admission to law colleges. The universities

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LE | TOP STORIES The BCI also pointed out the admission criteria
to law colleges. It said that while the universities
It stated, “The appellant is constituting a high- conducted the entrance exams, it would be better
powered committee to check the legal and if the legal education committee of the BCI and the
constitutional validity of compulsory chamber advisory board introduced a state-level entrance
placement with senior advocates or advocates test for admission to law colleges.
having years of standing at the Bar for young
law graduates or to a fair system for juniors to (The advisory board comprises the Chief Justice of
find placement in chambers. Upon reaching the India and nine other judges of the Supreme Court.
conclusion on how to implement this issue, each It also includes the Union Law Minister, vice-
such advocate shall be requested to engage at least chancellors of various universities, senior lawyers,
five such juniors in their chambers.” academicians, social activists, and Members of
Parliament.)
It added that BCI was also planning to frame a rule
wherein fresh law graduates would undertake online The BCI also addressed the concern of the court
objective tests and the results would be valid for a on the mushrooming of law colleges and the low
period of six months. standard of education. It stated that it had earmarked
about 500 sub-standard institutions throughout the
The affidavit further said, “On the basis of the results country.
of these tests, meritorious junior law graduates,
who have freshly obtained enrollment, shall get The affidavit read, “A team led by some former
placement under senior advocates or advocates judges, senior advocates and academicians plan to
having 25 years of standing at the Bar. Other junior conduct surprise visits of such institutions. If any
advocates shall also get placement under advocates institution is found to be below standard, having
having 15 to 20 years of experience. The BCI shall neither sufficient faculties, nor infrastructure, the
request all such advocates throughout the length legal education committee shall take immediate
and breadth of the country to co-operate and steps to close such institutions.”
contribute in this regard.”
It also emphasized that since only the concerned
Assisted by senior counsel and amicus curiae universities and state governments could set up or
KV Viswanathan, the bench was emphatic that the close down the law colleges, the regulatory body
standards of legal education would not improve would have the right to withdraw the approval
until BCI tightened the yardsticks in examinations. granted for running the courses of legal education.
In order to ascertain a high standard of
education, it was imperative to maintain stringent The BCI complained, “Some government universities
control at the entry level and ensure constant have been recklessly granting affiliation to law
monitoring. colleges. Often state governments are granting No
Objection Certificates without examining/verifying
In November 2020, the Gujarat High Court allowed the infrastructure. These are hurdles in improving
a woman to enroll as an advocate without quitting the standard of legal education and ultimately affect
her job. BCI had then appealed and argued that the standard of the profession.”
the decision would open the floodgates for such
requests. The rules specifically stated that while To discourage the mushrooming of law colleges,
being employed in another job, no one could enroll BCI clarified that it had imposed a three-year
as an advocate. moratorium on opening new law colleges in August
2019. However, the Punjab and Haryana High Court
The BCI stated that the suggestion from the had held that it violated the right to practice any
court on allowing those employed in some other profession or to carry on any occupation, trade, or
professions to sit for the Bar exam was under business under the Constitution of India. It led to
deliberation of a high-level committee comprising BCI clarifying the moratorium did not exist.
former judges and senior lawyers of the Supreme
Court and High Courts. According to the BCI statistics, there were around
1,500 law colleges across the country, including
As for evolving a fair system for juniors to find 75 percent private colleges. The data showed
placement in chambers, the affidavit underlined that India had 1.7 million registered lawyers. Also,
that a panel had been constituted to scrutinize the annually, about 80,000 to 100,000 new advocates
possibility and make it obligatory for senior lawyers get enrolled.
to accommodate fresh law graduates.
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136 JUNE-JULY 2022

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HIGH COURT & TRIBUNAL NEWS AROUND THE NATION

BOMBAY High Court

BOMBAY HIGH COURT RULES AGAINST CCI ORDER

Asianet Star Communications, Disney a complaint by Asianet Digital Network Pvt Ltd
Broadcasting and Star India had filed a plea (ADNPL).
opposing investigation of the companies.
ADNPL has been in the business of distribution
The Bombay High Court has directed the of TV channels to customers through local cable
Competition Commission of India (CCI) not to take operators, predominantly in Kerala.
any coercive action against three broadcasters and
media and entertainment companies on an order In its complaint, ADNPL contended that
initiating an investigation against the companies. broadcasters such as the petitioners should
not have discriminatory pricing in commercial
The petitioners include Asianet Star contracts with multi-service operators.
Communications Pvt Ltd, Disney Broadcasting
(India) Pvt Ltd and Star India Pvt Ltd. It had referred to the regulations of the Telecom
Regulatory Authority of India (TRAI) and the
A bench of Justice Gautam Patel and Justice Telecom Disputes Settlement and Appellate
Madhav Jamdar ordered, “The CCI is not to pass Tribunal (TDSAT) that prohibit discriminatory
any further orders or to adjudicate further on the pricing in commercial contracts with multi-service
complaint (in which the order under the challenge operators.
is passed) until further orders of the Court. The
CCI is not to permit or direct any coercive actions ADNPL had stated that by abusing their position
against the petitioners until the next date.” of dominance, the petitioners provided significant
discounts to a direct competitor through allied
Additionally, the court directed the petitioners to agreements that offered a cash-back system. It
furnish the documentary material to the Director meant bypassing the TRAI/TDSAT regulations
General (DG) of CCI in response to the queries. and providing an unfair advantage to ADNPL’s
It also ordered the DG to keep the information competitors.
confidential as required by the law.
In response to that, the CCI had ordered an
The bench ruled on the petitions challenging investigation into the matter. Subsequently, the
the order of the CCI passed in February 2022 petitioners challenged it before the High Court.
directing the DG to initiate the investigation
under the Competition Commission Act based on Appearing for Star India, Senior Advocate Darius
Khambata submitted that the order was bad and
138 JUNE-JULY 2022 could not be sustained.

However, appearing for the CCI, Advocate
Somsekhar Sundaresan opposed the petition on
the point of jurisdiction. He stated that since the
entire issue arose in Kerala, the challenge ought to
also have been in the court of that state.

Senior Advocate Navroz Seervai, while appearing
for ADNPL, also supported the same. He submitted
that ADNPL’s contention was that the petitioners
were subverting the TRAI/TDSAT norms and,
thereby, causing prejudice. The two contended
that all that the CCI intended to do was collect
the data.

www.legaleraonline.com

The court suggested that the CCI be given an NATIONAL |LE
opportunity to place its case before the court along
with the complainant. It permitted the parties to Seervai along with Senior Advocate Dr Birendra
file their affidavits in replies and rejoinders before Saraf and Advocates Pradeep Bakhru, Avinash
3 June and placed the matter for hearing on 8 June. Amarnath, Tarun Donadi, Nikhil Gupta and
Priyanka Chaddha briefed by Wadia Ghandy & Co
Khambata along with Senior Advocate Dr. Mustafa appeared for ADNPL.
Doctor and Advocates Kunal Dwarkadas, Rajendra
Barot, Nafisa Khandeparkar, Ambareen Mujawar, Sundaresan appeared for CCI with Advocates
Nitin Nair, Varun Thakur and Akshay Agarwal Abhishek Venkatraman, Viswajit Deb, Manu
briefed by AZB & Partners, appeared for Star and Chaturvedi and Malhar Desai Hafeez Patanwala
Asianet Star. briefed by Juris Corp. Advocate Thomas George
of Saikrishna Associates represented Disney
Broadcasting.

BOMBAY HC RULES IN FAVOR OF HUL OVER DISPARAGING ADVERTISEMENT

The Court has restrained Sebamed from running or broadcasting, or communicating to the public
advertisements that disparage or belittle the any content that disparages its brand.
products of HUL.
Ruling in favor of HUL, the Court restrained
The Bombay High Court recently granted relief Sebamed from running advertisements that
to Hindustan Unilever (HUL) against Sebamed, a disparage or belittles the products of HUL.
German-based soap company.
Kritika Seth, founding partner, VictoriamLegalis –
The issue first arose in 2021, when Sebamed Advocates & Solicitors said to Mint that “Bombay
released print advertisements targeting Lux, High Court made it clear that comparative
Dove, Rin, and Pears, all of which are owned by marketing is an infringement of a brand’s
HUL. The advertisements stated that the HUL intellectual property. If a brand has any scientific
owned soaps do not maintain an optimal level of advances over any other brand regarding its
pH level. products, then the focus should be on creating
awareness regarding such important aspects so
HUL thereafter filed a suit with the High Court of that a consumer can make an informed decision.
Bombay over ‘disparaging advertisements’. Comparative marketing not only infringes the
brand but also denigrates the reputation of the
It was prayed that Sebamed must be restrained brand that it has built over a period of time”.
by an order or injunction from using, telecasting
According to Dev Bajpai, Executive Director, Legal
www.legaleraonline.com & Corporate Affairs, HUL, Sebamed’s campaign
unfairly sought to discredit soap brands of HUL,
and therefore, HUL deserved protection.

He went on to add that Sebamed’s ad campaign
was highly irresponsible, and that such a
misleading communication was issued during
the pandemic when the government and health
authorities had advocated handwashing with any
soap.

According to the court, Sebamed’s advertising
purpose was not to promote their own product,
but to discourage the consumer from purchasing
HUL’s products – which is not permissible.

JUNE-JULY 2022 139

LE | NATION@GLANCE

Jammu and Kashmir High Court

RIGHT TO PROPERTY IS A BASIC HUMAN RIGHT WHICH IS AKIN TO A
FUNDAMENTAL RIGHT: J&K HC

No one can be deprived of his property other 2017 till date.
than by the following procedure prescribed in
law. The Court concluded that:

The High Court of Jammu and Kashmir and “Accordingly, the respondents are directed
Ladakh imposed a penalty of ₹10 Lakh on the to assess and determine the compensation of
Union Territory of Jammu & Kashmir on account the aforesaid land payable to the petitioner
of violation of the right to property. The bench at the stamp duty rate as prevalent today in
comprising of Chief Justice Pankaj Mithal and the area within 6 weeks and to make payment
Justice Javed Iqbal Wani opined that: thereof within a further period of 3 months.
The respondents at the same time shall also
“It is well recognized that the Right to pay token rental compensation for the use and
Property is a basic human right which is akin occupation of the aforesaid land from the year
to a fundamental right as guaranteed by Article 2017 till 2021 i.e., 05 years @ `1.00 lac per year
300A of the Constitution of India and that no within 3 months from today.”
one can be deprived of his property other than
by the following procedure prescribed in law.” An Additional Rs. 10 Lakhs compensation was
imposed on the Department for violating the
Under the present application, the Petitioner right to property of the Petitioner which is
claimed that he is the owner of private land guaranteed by the Constitution and the same
which was taken into possession by the R&D shall be payable with three months.
Department for the construction of the long
steel Girder Bridge at Zalpora Sultanpora In the event the aforementioned amounts are not
Sumbal, Bandipora in the year 2017. However, paid, the Petitioner shall be entitled to move an
the land was acquired without adhering to any application and bring it to the notice of the Court
statutory provisions and without the consent “whereupon the Court will swing into action and
of the Petitioner. It was further stated that no take appropriate coercive measures against the
compensation was paid to the Petitioner for the respondents for the realization of the aforesaid
said land. amount may be as arrears of land revenue”.

The Court was of the prima facie opinion that
the private land of the Petitioner has been
taken forcibly by the Department without
consent and without taking recourse to any
procedure prescribed in law. It was also an
admitted fact that the Petitioner has not been
paid any compensation in respect of the said
land though the determination/assessment of
the compensation is underway as per the stamp
duty rate.

Therefore, given the present case, the
Respondents were penalized for violating the
basic human right, to pay compensation of
the said land at stamp duty rate and rental
compensation for use and possession from

140 JUNE-JULY 2022 www.legaleraonline.com

NATIONAL |LE

DEBT OWED BY ONE PARTNER DOES NOT MAKE THE OTHER PARTNER LIABLE
UNDER IBC: NCLT

IBC does not protect the interest or claim of the Partnership Firms have not been notified in the
partner against another partner or the Firm as such IBC yet.
though, the Financial Creditor may be entitled to
the claims against the Corporate Debtor under Given the submissions by both parties, the Tribunal
any other law in force which may provide the legal was of the view that there is no dispute that the
recourse to the Financial Creditor. Borrower Firm owed money to the Financial
Creditor as the money due and payable were not
The National Company Law Tribunal (NCLT), paid by the Borrower Firm, hence the default was
Mumbai Bench recently held that “IBC does not committed. However, there was no default by the
protect the interest or claim of the partner against Corporate Debtor.
another partner or the Firm” while adjudicating a
company petition under Section 7 of the Insolvency The Tribunal observed, “According to the definition
and Bankruptcy Code, 2016. of Corporate Debtor as given in Section 3(8) of the
Code, “corporate debtor means a corporate person
It was claimed by the Financial Creditor, that it who owes a debt to any person.” This Bench is of
had disbursed a loan amount of 5,25,000 in favor the view that referring to the said section, the
of one Kavya Construction Co. (Borrower Firm), Corporate Debtor does not owe any debt to the
which is a partner of Kavya Buildcon Pvt. Ltd Financial Creditor and hence proceedings against
(Corporate Debtor). The total debt amount as of Corporate Debtor under this Code would be
31.03.19 was ₹ 9,72,876 inclusive of interest of inappropriate.”
12% p.a.
The Tribunal also placed reliance on the case of
The Financial Creditor relied on a copy of the Deed Transmission Corporation of Andhra Pradesh
of Retirement from partnership dated 31.12.15 to Limited v. Equipment Conductors and Cables
establish that the Corporate Debtor is a partner Limited [C.A No. 9597/2018 dated 23.10.2018
of the borrower firm, therefore the Corporate (2018) 147 CLA 112 [SC] para 15, wherein the
Debtor was jointly liable for the repayment of the Supreme Court had observed as under:
said debt amount.
“In a recent judgment of this Court in Mobilox
In response to these submissions, the Corporate Innovations Private Limited v. Kirusa Software
Debtor contended that the Financial Creditor had Private Limited (2018) 1 SCC 353, this court
neither provided any loan in favor of the Corporate has categorically laid down that IBC is not
Debtor nor furnished any documents to prove the intended to be substitute to a recovery forum. It
same. It was submitted that the provisions with is also laid down that whenever there is existence
respect to proceedings to be initiated against the of real dispute, the IBC provisions cannot be
invoked…”

The Tribunal added that the IBC does not protect
the interest or claim of the partner against another
partner or the Firm as such though, the Financial
Creditor may be entitled to the claims against
the Corporate Debtor under any other law in
force which may provide the legal recourse to the
Financial Creditor.

The NCLT concluded that there is no evidence of
any agreement between the Financial Creditor and
the Corporate Debtor to establish the existence
of default on part of the Corporate Debtor.
Therefore, the present Company Petition was
thereby dismissed.

www.legaleraonline.com JUNE-JULY 2022 141

LE | NATION@GLANCE

NCLT ADMITS INSOLVENCY PETITION AGAINST THE PROMOTER OF DECCAN
CHRONICLE HOLDINGS LTD.

When there is a pending suit for recovery based Guarantee guaranteeing the repayment of the said
upon a cause of action that was within limitation, on facilities extended to DCHL.
the separate and independent remedy of a winding
up proceeding, the same cannot impact limitation However, it was averred that DCHL and Mr. T.
which was already set in motion. Venkatarami Reddy committed default under
the Deed of Guarantee, pursuant to which the
The National Company Law Tribunal (NCLT) Financial Creditor initiated arbitration proceedings
Hyderabad Bench vide its order dated 24.06.2022 in the year 2012 against both, DCHL and Mr. T.
admitted an Insolvency Resolution Petition filed Venkatarami Reddy.
by L & T Finance Limited (Financial Creditor)
against the Promoter and Personal Guarantor of On 15.03.2013, the Arbitral Tribunal passed an
Deccan Chronicle Holdings Limited (DCHL), Mr. T. Award against DCHL as well as Mr. T. Venkatarami
Venkataram Reddy. Reddy, directing them to pay the Financial Creditor
a sum of Rs.25,02,61,350/- along with interest @
It was claimed that DCHL is one of the biggest 15% per annum.
defaulters being faced with several proceedings by
law enforcement authorities such as Enforcement The Financial Creditor, in order to enforce the
Directorate, SFIO and CBI on account of bank loan Arbitral Award instituted an Execution Application
fraud of approximately `2500 crores. before the Bombay High Court which is still
pending.
The NCLT bench comprising Dr. N. Venkata
Ramakrishna Badarinath (Judicial Member) and Shri In the meanwhile, DCHL was admitted into CIRP on
Veera Brahma Rao Arekapudi (Technical Member) 19.07.2017 pursuant to an application filed under
was faced with the question as to whether Section 7 of the IBC.
the Personal Insolvency Petition was barred by
limitation in view of the fact that the debt payable Thereafter, the Financial Creditor filed an
by the Corporate Debtor (DCHL) became due in the Application under Section 95 of the IBC against the
year of 2012. Personal Guarantor.

In the present case, the Financial Creditor All claims of the Financial Creditor were denied
sanctioned a loan under a Facility Agreement stating that no amount is due and payable since the
executed between the Financial Creditor and DCHL Resolution Plan was approved by this tribunal on 3
in the year 2011, the Promoter executed a Deed of June 2019.

The Personal Guarantor argued before the NCLT
that the debt payable by DCHL became due in the
year of 2012, and the present Company Petition
was barred by limitation since the present Company
Petition was filed beyond the period of limitation
i.e., three years, which is antithetical to Article 19
and 137 of the Limitation Act, 1963.

The Personal Guarantor relied upon the judgment
of the Supreme Court in Jignesh Shah and Anr vs.
Union of India & Anr [WP (Civil) No. 455 of 2019]
wherein it was held that in the absence of any
acknowledgment of liability by the debtor, parallel
proceedings such as a suit for recovery initiated by
the creditor would be a separate and independent
proceeding distinct from the remedy of winding

142 JUNE-JULY 2022 www.legaleraonline.com

up and pendency of such suit will not extend the NATIONAL |LE
limitation for the purpose of winding up.
In the case of Jignesh Shah, the Supreme Court
Countering the arguments of the Personal has dealt with “a pending suit for recovery based
Guarantor, the Financial Creditor relied upon the upon a cause of action that was within limitation,
judgment of Dena Bank vs C. Shivakumar Reddy on the separate and independent remedy
& Anr (Civil Appeal No.1650 of 2020) wherein of a winding up proceeding and that the same
the Supreme Court held that an Application under cannot impact limitation which was already set
Section 7 or 9 of the IBC may be time-barred, in motion ” and since in the present case no
even though some other recovery proceedings suit was pending and the fact that the Personal
might have been instituted earlier in respect of the Guarantor is also a Judgment Debtor in view of the
same debt, however, if the Applicant approached pendency of the execution proceedings before the
the Adjudicating Authority after obtaining a Final Bombay High Court, the Company Petition against
Order/Decree and the Decree remains unsatisfied, the promoter of DCHL, Mr. T. Venkatrami Reddy
the creditor gets a fresh limitation to initiate an was admitted and Insolvency Resolution Process
action for insolvency against the judgment debtor. was initiated.

The NCLT, while accepting the arguments advanced As a result, NLCT admitted the present application
by the Financial Creditor, held that since the Arbitral by the Financial Creditor and directed to initiate
Award in favor of the Financial Creditor attained the Corporate Insolvency Resolution Process.
finality and an execution application was pending
before the Bombay High Court, the Arbitral Award L & T Finance Limited was represented by Senior
remained unsatisfied by the Personal Guarantor. Counsel Vivek Reddy who was briefed by IndusLaw,
Hyderabad team comprising of Shabbeer Ahmed
The NCLT rejected the argument of the Personal (Partner), V. Aneesh (Principal Associate) and
Guarantor and held that the judgment rendered in Indraprateek Naidu (Associate).
Jignesh Shah and Anr vs. Union of India & Anr is not
applicable in the present case. Mr. T. Venkataram Reddy was represented by
Shri S. Ravi, Senior Advocate assisted by Shri A.
Chandrasekhar, Advocate.

“FRESH CLAIMS CANNOT BE RAISED ONCE RESOLUTION PLAN IS APPROVED”: NCLT

Once a Resolution Plan is approved, the role of the The Applicant filed the present petition to urge the
Resolution Professional ends. Tribunal to direct the Respondent to make good
for the losses suffered by him due to failure on part
The National Company Law Tribunal (NCLT), of the Respondent to fulfill business commitments.
Mumbai Bench recently held that claims could not
be claimed once the Resolution Plan towards a The Applicant suffered losses of `5,70,90,760/-
Corporate Insolvency Resolution Plan is approved. because the Respondent failed to supply the
agreed quantity of goods. The facts of the case are
that the Applicant made several purchases ordered
to the Respondent while the Respondent was
under the CIRP process. The appointed Resolution
Professional for the process for Respondent
2. Therefore, the said purchase orders were
represented by the Resolution Professional.

It was stated by the Applicant that he followed
up with the Resolution Professional several times
for the consignment of goods, and he was further
assured by the Resolution Professional that said
order will be completed.

www.legaleraonline.com JUNE-JULY 2022 143

LE | NATION@GLANCE It was further observed that “It is not understood in
what capacity Resolution Professional could have
However, the Respondent, as well as the Resolution addressed any communication after the approval
Professional, did not respond to the emails sent by of the Resolution Plan on 7th of April, 2022,
the Applicant. thereby advising the applicant to do anything as
stated in his e-mail dated 25th of April, 2022. It
On 25 April 2022, the Resolution Professional is an established position of law that once the
replied to the Applicant’s emails and stated that Resolution Plan is approved the role of Resolution
the Debit Note for December 2021 cannot be Professional comes to an end.”
completed since the Bishnupur Plant was shut
down on 3 October 2021. As a result, all the Therefore, the Tribunal held that the Resolution
purchase orders by the Applicant were canceled. Professional could not have addressed the
communication since the Resolution Plan was
It was urged by the Applicant before the Tribunal already approved.
that the Respondent be made liable to make good
for the losses suffered by the Applicant due to the “In view of the admitted position, since the applicant
cancelation of the purchase orders. did not approach this Adjudicating Authority when
the Resolution Plan was under consideration and
In light of the submissions made by the Applicant, had come before this Adjudicating Authority
the Tribunal noted that the Resolution Plan was after the approval of the plan, this Adjudicating
already accepted on 7 April 2022. Authority is of the opinion that he has no right to
file any application or seek any relief at this stage”
Placing reliance on the case of Ghanashyam Mishra noted the NCLT.
& Sons Pvt Ltd v Edelweiss Asset Reconstruction
Company Ltd., the Tribunal was of the view that The application was thus dismissed.
it is an established position of law that once
a Resolution Plan is approved, the role of the
Resolution Professional ends.

KK VENUGOPAL RE-APPOINTED AS ATTORNEY GENERAL

KK Venugopal The notification read, “The President of India
is pleased to re-appoint K.K. Venugopal, Senior
The current one-year term of the 90-year-old Senior Advocate, as Attorney General of India with effect
Advocate expires on June 30. from 1 July 2022 for a further period of three
months or until further orders, whichever is earlier.”
In a notification, the Ministry of Law has announced
that Attorney General K.K. Venugopal has been In July 2017, Venugopal was appointed by the
re-appointed as the country’s top law officer for a President of India to succeed Mukul Rohatgi as the
period of three months. Attorney General. However, when his first term
was to end in 2020, he requested the government
to give him another one-year tenure and he was
reappointed.

It is said that the government was keen that he
continue as the Attorney General in view of the
high-profile cases he was handling in the Supreme
Court and his experience at the Bar.

Venugopal is an eminent advocate of the apex court,
who served as the Additional Solicitor General of
India between 1979 and 1980. In 2002, he was
conferred the Padma Bhushan and in 2015 the
Padma Vibhushan.

144 JUNE-JULY 2022 www.legaleraonline.com

NATIONAL |LE

DELHI High Court

DELHI HIGH COURT PROVIDES REPRIEVE TO JUST DIAL

The matter will be heard again on August 25. people could have been duped by the
defendants, who had continued to operate
The Delhi High Court has granted ad-interim their website.
relief to search engine Just Dial in a suit
against a company involved in alleged data She ruled, “In the interest of the general
theft, trademark and copyright infringement. public, the plaintiff has made out a prima
facie case for grant of an ex-parte ad-interim
The bench comprising Justice Pratibha injunction. The balance of convenience lies in
M Singh held, “If the relief sought is not the favor of the plaintiff.”
granted, an irreparable loss would be caused
as it would not only jeopardize the plaintiff’s The defendants were restrained by the court
rights but also the rights of its various clients, from providing or advertising any goods or
customers and the general public, who might services on their website or utilizing the data
make payments to avail its services.” belonging to Just Dial till the next date of
hearing.
Representing the search engine company,
Senior Counsel Dayan Krishnan informed They were also restrained from collecting any
the court that a few months ago, its client payments.
had realized that the defendant company
Local Search Solutions Private Limited The court also ordered the Ministry of
was operating its website by copying large Electronics and Information Technology and
volumes of data from the website of Just the Department of Telecommunications to
Dial. It had ‘verbatim lifted’ thousands of its issue instructions to all the ISPs to block the
listings, source data code, corporate numbers defendant’s website and suspend its services.
and other proprietary data.
While Just Dial was also represented
He submitted various illustrations of the data by Advocates Aditya Gupta, Abhilasha
lifted by the defendant. It was demonstrated Nautiyal, Sauhard Alung, S Seth and Bandan
by the use of the ‘JD logo’, identical source Karkidholy, Advocate Kirtiman Singh appeared
codes, dummy listings, phone numbers, and for the Government of India and the Union
complete customer reviews from Just Dial’s ministries were advised by Advocate Kunjala
website. Bhardwaj.

Just Dial contended that the defendant had
collected money through credit cards without
issuing the invoices.

Posing as a customer, it made a trap transaction
on the website and discovered that the credit
card used by it was put on auto-debit mode.

It resulted in the amount being deducted from
the account in January 2022 without any
order being placed.

Just Dial pointed out that in this manner a
large sum of money might have been taken
out from gullible customers.

Justice Singh agreed that many innocent

www.legaleraonline.com JUNE-JULY 2022 145

LE | NATION@GLANCE

DELHI HIGH COURT RULES AGAINST INCOME TAX AUTHORITIES

The department was held responsible for imposing authorities had failed to specify whether the action
a penalty that was arbitrary. was taken against the assessee for ‘underreporting’
or ‘misreporting’ the income under the IT Act.
The Delhi High Court has ruled that the Income
Tax authorities had failed to specify the clause The bench held that the respondents’ action of
under which the penalty proceedings were initiated denying the benefit of immunity on the ground that
against the assessee. It said that the assessee the penalty was initiated for misreporting of income
was denied the benefit of immunity from penalty was not only erroneous but also arbitrary and bereft
under the Income Tax Act on the ground that it was of any reason. That is because in the penalty notice
initiated for misreporting of income. the respondents failed to specify the limb under
which the penalty proceedings had been initiated.
The two-judge bench comprising Justice Manmohan
and Justice Dinesh Kumar Sharma held that since the The court observed that the edifice of the assessment
order framed by the respondent was a voluntary
computation of income filed by the petitioner. The
latter had done so to avoid litigation, which was
accepted in the assessment order. Therefore, the
question of misreporting did not arise.

The bench ruled, “The impugned action of the
respondent is contrary to the avowed legislative
intent of the IT Act to encourage/incentivize a
taxpayer to - fast-track settlement of the issue;
recover the tax demand; and reduce the protracted
litigation.”

Calcutta High Court

GOVERNMENT APPOINTS FIVE PERMANENT JUDGES AT THE CALCUTTA
HIGH COURT

The Supreme Court Collegium had recommended
their permanency.

The Government of India has notified the
appointment of five additional judges of the
Calcutta High Court as permanent judges.

The decision of the Central government came
pursuant to the recommendation made by the
Supreme Court Collegium in April.

As of 1 April 2022, the high court, which has a
sanctioned strength of 72 judges, is functioning
with 39 judges. It has 33 vacancies.

The judges who have been made permanent are -
Justice Kesang Doma Bhutia, Justice Rabindranath
Samanta, Justice Sugato Majumdar, Justice Bivas
Pattanayak, and Justice Ananda Kumar Mukherjee.

146 JUNE-JULY 2022 www.legaleraonline.com

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LEGAL UPDATES FROM ACROSS THE GLOBE

Russia

RUSSIA THREATENS GOOGLE AND WIKIPEDIA WITH FINES

The case will be heard in Moscow’s Tagansky inaccurate reports and encouraging extremism
district’s 422nd magistrate judicial district on against Russian citizens on the special military
April 21 operation in Ukraine.

A Russian court has registered administrative Earlier, Roskomnadzor, Russia’s Internet
cases against Google and Wikipedia. It has regulator had filed the protocols for Wikimedia
threatened to impose hefty fines on Wikimedia under Article 13.41 of the Code of Administrative
Foundation and Google for refusing to remove Offenses of the Russian Federation, in the court.
It pertained to the failure to remove any content
banned in Russia. Google is facing a fine of up to
12 million rubles.

Beginning last year, the leading Internet service
providers Google, Telegram, Facebook (now
Meta) and Twitter have repeatedly been held
accountable for violating Russian regulations.
In December last, a Russian court had ordered
Meta to pay 2 billion rubles and Google was
ordered to pay over 7.2 billion rubles as a fine.

Since Moscow considers it illegal, Google is also
likely to face a fine over its refusal to eliminate
content from its video-sharing site YouTube.

United States

DEBEVOISE NAMES SUCCESSOR TO MICHAEL BLAIR

Around 97 percent of surveyed in-house Nicole Mesard & Peter Furci
counsel said their companies’ tech ecosystem www.legaleraonline.com
has become more complex since they became
part of the company

The general counsel’s role in managing
technology-related decision-making at an
organization has increased, but only a third
of executives believe that GCs are adequately
knowledgeable to handle advanced tech
solutions, according to a new report.

The General Counsel Report 2022, published

148 JUNE-JULY 2022

by US business advisory firm FTI Consulting INTERNATIONAL | LE
in partnership with legal and compliance tech
company Relativity, reveals that 97percent involvement in technology decision-making
of 30 surveyed in-house lawyers feel they has grown by 13percent and technology has
are increasingly involved in their company’s become one of the most prominent topics
technology ecosystem beyond just budget discussed by lawyers in connection to a
approval. More than 87percent of respondents company’s legal function, especially during the
state that they are heavily involved in aspects recent pandemic.
beyond budget approval, like tech planning and
purchasing. The modernization of technology and
transformation of law departments continue
Over the past two years, general counsel’s to be critical priorities for in-house counsel,
according to Wendy King, a senior managing
director at FTI Consulting.

FEDERAL ANTITRUST LAWSUIT FILED AGAINST GOOGLE

It claimed unlawful business practices under of Waze by Alphabet Inc., Google captured
the California State Law roughly 81 percent of the navigation mapping
market through the offering of Google Maps
A federal class-action antitrust complaint for free.
has been filed against Google for allegedly
leveraging its dominance in the GPS navigation It further complained that Google constructed
mapping market. entry barriers by exploiting its treasure-
trove of competitively valuable information,
Google is accused of improperly and unlawfully including without limitation, traffic, conditions
connecting services including Google Maps and rerouting information, interior and exterior
and Waze, which provides satellite navigation photographs, reviews, and commentary from
software. It is alleged that it locks app developers Google+ friends.
into the ‘Google ecosystem’, subjecting them to
egregious and anti-competitive price hikes. The plaintiffs stated that the Company had
imposed restrictive terms of service upon the
Plaintiffs Dream Big Media and Getify Solutions developers to maintain a monopoly throughout
jointly filed the lawsuit before the US District the relevant product markets of Maps APIs,
Court for the Northern District of California. Routes APIs, and Places APIs, in addition to
It alleged that subsequent to the acquisition cloud computing, through anti-competitive
acquisitions.
www.legaleraonline.com
It used data amassed through its consumer
services including Gmail, YouTube, Chrome, and
Android OS to lock in substantial app developer
demand. It also gave self-preference over
products from app developers using Alphabet
Inc. products and services, using Google’s
market power to impair actual or potential
rivals from accessing data that could allow
them to compete with Google.

The plaintiffs argued that Google violated
federal antitrust law by unlawfully tying in and
bundling the distribution of the products. This
violated 15 USC §§ 1 and 2.

JUNE-JULY 2022 149

LE | WORLD@GLANCE
NORTON ROSE FULBRIGHT OPENS OFFICE IN CHICAGO

It continues to grow its Midwest presence the US District Court for the Northern District
following the expansion of its Minneapolis office of Illinois.

Norton Rose Fulbright, the second-largest law Farris, Hines and McClendon had worked with
firm in the US and one of the largest in the K&L Gates for over three years, specializing in
world, will open an office in Chicago. technology, privacy and data security.

An 11-lawyer team joining from K&L Gates, DLA Prior to that, they worked at Polsinelli and Fox
Piper and Polsinelli, will spearhead the launch. Rothschild. Farris was chair of the technology
The lawyers have expertise across technology practice at Fox. Ghaznavi, who worked as a
transactions, intellectual property, projects and counsel with DLA Piper for four years, was
employment laws. earlier a counsel at Chapman and Culter and
worked in-house at AEP Energy.
They include Partners Andrew Cripe, Daniel
Farris, Sameer Ghaznavi, Christopher Hines Other lawyers joining the team are Francesca
and Joe McClendon and Senior Counsel Mary Cardillo (Senior Associate), Erica Cook, Alex
Kathryn Curry. Katsulis, Nidhi Narielwala and Meghan Tierney
(Associates), and Janet Ross and Alyson Schmidt-
Jeff Cody, the US Managing Partner at Norton Iverson (Paralegals).
Rose Fulbright’s said, “Opening in Chicago, the
country’s third-largest legal market, is a natural The Chicago office is the firm’s 12th in the US
progression of our strategic growth plan in the and 53rd worldwide. To expand its Minneapolis
US and beyond. We start with a highly regarded office, it recently hired a team from the boutique
and diverse team of lawyers anchored by Daniel, trial law firm Blackwell Burke.
Christopher, Joe, Sameer, Andy and Kathryn. It
gives us a strong foundation as we continue to
recruit top-flight talent.”

Gina Shishima, the chief strategy and operations
partner at Norton Rose Fulbright said, “Chicago
is a hot spot for innovation and we are eager
to serve the city’s thriving business community
across a host of practices in the transformative
sectors.”

While employment lawyer Cripe joins after
almost a decade at Polsinelli, where he was a
shareholder and practice group leader, Curry
also joins from Polsinelli, where she spent seven
years having previously been a judicial clerk in

150 JUNE-JULY 2022 www.legaleraonline.com